State of New South Wales v Brown

[2021] NSWSC 148

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Brown [2021] NSWSC 148

Hearing dates:

15 February 2021

Date of orders:

26 February 2021

Decision date:

26 February 2021

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

I order that:

(1) pursuant to ss 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be under supervision in the community for a period of 3 years commencing today, 26 February 2021;

(2) pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), during the period of supervision the defendant is to comply with the conditions in the Annexure to this judgment.

Catchwords:

HIGH RISK OFFENDERS — extended supervision orders — serious sex offender — where order not opposed — conditions — relevance of conditions to risk — term of

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), s 17

Crimes Act 1900 (NSW), s 61K

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5I, 7, 9, 11

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Bugmy [2017] NSWSC 855

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Bruce Brown (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
T Edwards (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)

File Number(s):

2020/322089

Publication restriction:

None

Judgment

1. By way of an amended summons, which I granted leave to file in Court on 15 February 2021, the plaintiff, the State of New South Wales (“the State”) brings proceedings against the defendant, Bruce Brown, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. As set out in the amended summons, the State originally sought both interim and final relief.

3. There was a preliminary hearing on 30 November 2020 at which time Garling J made orders. The matter was then listed for final hearing on 15 February 2021. The orders made by Garling J included orders under s 7(4) of the Act for the appointment of experts to examine and report upon the defendant. His Honour also made an interim supervision order (“ISO”) on the conditions referred to in the short minutes of order dated 30 November 2020.

4. On the preliminary hearing, the defendant did not dispute that he should be subject to an ISO or that he should be psychiatrically examined. The defendant was examined on 14 December 2020 by Dr Richard Furst, who prepared a report dated 22 January 2021. He was further examined on 14 January 2021 by Dr Christopher J Lennings, who also prepared a report dated 22 January 2021. Dr Furst had previously interviewed the defendant on 21 April 2016 and prepared a report dated 28 April 2016.

5. The defendant does not dispute that he should be subject to an extended supervision order (“ESO”). The focus of the hearing was on the conditions of the ESO.

Legislation

6. As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.

7. Section 5B of the Act provides the circumstances in which the Court may make an ESO:

5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d)   the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

8. As the defendant did not dispute that he should be subject to an ESO, it must be that he accepts that the Court would be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious offence if not kept under supervision under the ESO. However, even though the defendant did not dispute this, it is necessary that the Court be satisfied independently that he poses an unacceptable risk.

9. Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt. [1]

   1. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

10. The meaning of “unacceptable risk” was considered in Lynn v State of New South Wales:[2]

“[50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

[51] What the court, therefore, must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision”. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

2. (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51] (Beazley P).

11. Importantly, the impact that an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, but the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [3]

    3. Lynn at [44], [56]–[58] (Beazley P), [126]–[128] (Basten JA), and [148] (Gleeson JA).

12. That is, whilst an ESO may not be made unless the Court is satisfied that the defendant poses an unacceptable risk as referred to in s 5B(d) of the Act, even if such a finding is made, the Court still has a discretion in the making of an ESO.

13. In determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court. [4]

    4. Section 9(2) of the Act.

14. Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

The evidence

15. On the final hearing, the State relied on the expert medical reports of Dr Furst and Dr Lennings, as well as the following affidavits:

1. five affidavits of Rebecca Iacono, affirmed 11 November 2020 (two of them), 18 November 2020, 20 November 2020 and 29 January 2021;

2. an affidavit of Ellen Joy McCarroll affirmed 3 February 2021; and

3. an affidavit of Ann-Marie Najjarin sworn 11 February 2021.

16. The defendant did not adduce any evidence but cross-examined Dr Furst and Dr Lennings.

Threshold requirements

17. The original summons was filed on 11 November 2020. At that time, the defendant was serving a sentence of imprisonment for the offences of inflicting actual bodily harm with intent to have sexual intercourse, contrary to s 61K(a) of the Crimes Act 1900 (NSW) and failing to comply with reporting obligations, contrary to s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”).

18. The defendant was released on parole on 16 October 2020. His sentence expired on 16 January 2021. The defendant is a “supervised offender” within the meaning of s 5I of the Act. An application has been made in accordance with s 5I.

19. The threshold requirements thus set out in ss 5B(a)–(c) of the Act are satisfied.

20. Further, for the reasons set out in this judgment, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order and thus s 5B(d) of the Act is also satisfied.

21. It is not necessary that I merely summarise all of the evidence relied upon in this judgment but there is some critical evidence which is relevant to the issues of unacceptable risk, whether to make an ESO and the terms of the conditions which should be imposed.

The defendant’s personal circumstances: s 9(3)(i)

22. The defendant is currently 36. He is a single man with a child from an earlier relationship. His daughter is in the care of the State of Western Australia. He suffers from an intellectual disability. He has been in receipt of a disability support pension since he was 16. He has no contact with his mother or sister and now no contact with his father. He appears to have no ties to the community at all.

23. He grew up in Bundaberg, Queensland, but had learning difficulties and struggled at school. He was teased, bashed and picked on at school. As a child, he moved around, finding himself in Western Australia with his father for a period. He was sexually assaulted by his father and he was also exposed to other forms of sexual deviancy within the home or the place where he was residing.

24. As I will detail in his criminal history, his sexual offending commenced at an early age. It seems that from the age of 16, he led a transient lifestyle, sometimes staying with his father and sometimes not. Other than employment for a few months in 2003 as a labourer, he has not worked.

25. At the time of commission of the index offence in 2015, he found himself living in a hotel in Bega. By that time, he had an extensive criminal history, primarily related to offending of a sexual nature. He was not working, he was not in a relationship and he was suffering from his intellectual disability.

26. As noted in the reports of Bonnie Duncan, psychologist, and Lauren Cooper, forensic psychologist, on behalf of the Corrective Services Department, addressed to the National Disability Insurance Agency, the defendant’s intellectual disability has compromised his ability to form and maintain healthy relationships. His nomadic lifestyle deprived him of the opportunity to make lasting friendships. He has no friends in the community and he has not been able to maintain appropriate relationships with others in custody. He lacks community connections. His ongoing inability to regulate his emotions, particularly his anxiety, will affect his ability to form and maintain friendships. He is unable to respond to social cues. Further, his desire for social connectedness makes him willing to engage with individuals that may negatively impact upon him.

27. Prior to his most recent release from custody, an NDIS application was made and ultimately approved. He is living in supported accommodation and is able to access medical and psychological assistance as part of the NDIS plan.

The defendant’s criminal history: s 9(3)(h)

28. The defendant has an extensive criminal history dating back to September 2003. The offending includes commission of offences in New South Wales, Queensland and Western Australia.

29. The offending is somewhat repetitive and of a similar nature. He approaches persons of the opposite sex, sometimes very young and sometimes adults, and assaults them.

30. In 2003 he entered a woman’s caravan without her consent, threatened her with a knife and groped her breasts.

31. On 28 July 2004, he assaulted a woman at his place of work in Wodonga, Victoria in the same way. He and his father then fled to Western Australia.

32. On 8 February 2005, he similarly assaulted a person under the age of 16. He was delivering newspapers when he saw a schoolgirl walking down the street. He approached her and asked if he could touch her. She ran off but the defendant caught up with her and grabbed her and squeezed her breasts.

33. Then on two occasions between 1 April 2006 and 9 October 2006, he sexually assaulted a six-year-old girl by penetrating her vagina with his finger.

34. On 4 May 2007, he was convicted on two counts of sexual penetration with a child under 16, one count of possessing child pornography and one count of breaching an intensive supervision order.

35. On 17 August 2009, he committed an offence of criminal damage by fire and two counts of criminal damage, where he slashed the tyres on his girlfriend’s car and later lit it on fire.

36. On April 2014, he was again convicted of indecent assault, this time, in Victoria.

37. He was then in Cairns in Queensland when he committed a further offence when he approached a 14-year-old girl in a supermarket, again squeezing both her breasts.

38. On 29 March 2015, he committed the offence of burglary in Mount Gravatt in Queensland. He moved back to New South Wales.

39. On 1 November 2015, he committed another assault, this time striking a person after a verbal argument.

40. Suffice to say, that from the age of 18 until commission of the index offence in 2015, he committed a number of offences of a sexual and violent nature. This offending included two offences against children.

41. As stated in the medical evidence, the combination of the defendant’s mild intellectual disability and disorder from which he suffers (Frotteuristic Disorder) has led to repeat offending by the defendant.

The index offence

42. On 9 May 2016, the defendant was sentenced in respect of the offences of inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act and failing to comply with reporting obligations under the CPOR Act. That is recorded in the sentencing judgment of Judge Colefax SC in the District Court.

43. The defendant was a “registrable person” under the CPOR Act who had failed to comply with the conditions imposed upon him by moving from state to state and failing to notify police of his change of address.

44. The circumstances of the index offence are that on 14 November 2015, the defendant had been drinking at the Commercial Hotel in Bega. At approximately 12.50am, he left the hotel and walked across the road and approached a woman. The defendant and the woman were affected by alcohol. He tried to kiss the woman but she protested and left. He followed her to a supermarket. As the victim approached the loading dock of the supermarket, the defendant approached her and knocked her to the ground without warning. He then sat on top of her. As the sentencing judge found, it was his intention to have sexual intercourse with her. She screamed for help and he punched her. He partly removed her top and was in the process of removing her shorts when persons came to her assistance.

45. At the time of that offending, he was on conditional liberty. The sentencing judge found that he had a long history for this type of offending. He was sentenced to a non-parole period of 3 years and 9 months with a balance of term of 1 year and 3 months expiring on 16 January 2021.

46. The offending must be viewed as an escalation of his offending in the sense that it involved not only sexual touching, which was the hallmark of his earlier offending, but also significant violence associated with his desire for sexual gratification.

Failure to comply with obligations: ss 9(3)(f)–(g)

47. The defendant has demonstrated an inability to comply with obligations imposed upon him arising out of his earlier offending. He was on conditional liberty at the time of the index offence. He failed to comply with his obligations under the CPOR Act when he moved interstate. He has previously failed to comply with restraining orders and reporting obligations in Western Australia and South Australia.

48. Further, since being released and subject to the ISO, he has already demonstrated difficulties complying with the terms of the supervision order.

49. On 1 December 2020, he was convicted of one count of destroy and damage property as a result of his attempt to cut off his electronic monitoring device. He was sentenced to an 18-month community corrections order.

50. On 5 November 2020, he was charged with an offence of failing to comply with his reporting obligations under the CPOR Act. He failed to disclose his use of the application “Snapchat” and a dating website called “Be Naughty”.

Report and evidence of Dr Richard Furst

51. There is no dispute as to the opinion, diagnosis and recommendations of Dr Furst, except to the extent that they relate to certain conditions. Dr Furst first examined the defendant on 21 April 2016 and further examined him on 14 December 2020 for the purposes of this hearing.

52. He opines that the defendant meets the criteria for the diagnosis of certain mental disorders: “Intellectual disability (mild range); Alcohol Use Disorder; Frotteuristic Disorder”.

53. He has a history of emotional problems and learning difficulties dating back to his early childhood. He also has a history of anxiety and panic symptoms, most likely being part of an adjustment disorder.

54. As Dr Furst notes, the majority of the defendant’s sexual offending behaviour has involved non-consenting females of various ages, including children, teenagers and adults, with a primary focus being on non-consensual touching of the female victims, especially their breasts. This meets the criteria for the diagnosis of Frotteuristic Disorder.

55. His primary risk factor in relation to ongoing sexual offending is this disorder. Further, there has been evidence of sexual preoccupation over many years, preceding his arrest for the index offence in 2015.

56. Although he is not dependant on alcohol, intoxication with alcohol probably contributed to his offending.

57. Dr Furst opines that the imposition of an ESO is likely to have a positive impact on his future rehabilitation, providing structure and access to services and supervision he would not otherwise have.

58. In Dr Furst’s opinion, the defendant poses a high risk of committing a further serious offence of a sexual nature, having regard to the conditions and risk factors which he identifies.

59. His score of 18 on the STABLE-2007 test is indicative of a high density of criminogenic needs relative to other male sexual offenders.

60. Dr Furst considers that the defendant’s Frotteuristic Disorder, cognitive impairment and related social and cognitive deficits are relatively stable constructs that are likely to persist in the future.

61. His risk of reoffending is well above the average risk of reoffending when compared with the typical offender.

62. Dr Furst adduced further evidence orally. I will comment on this evidence when considering the issues relating to specific conditions.

The report and evidence of Dr Christopher J Lennings

63. The opinion of Dr Lennings is similar to that of Dr Furst. During examination, Dr Lennings asked the defendant whether he thought he was a high risk offender and he agreed that he was, although he felt that the ESO takes away too much of his freedom.

64. He said he had attempted to remove his electronic monitoring because he was “being an idiot”. He could not use Facebook and he became resentful. He said to Dr Lennings that his sex drive remained high, although he was using Androcur, which has some beneficial or limiting impact on that. He informed Dr Lennings that one of the cues for him to become sexually aroused was watching sitcoms on TV such as Neighbours. He began to fantasise about having sex with the characters in the show.

63. The defendant said that he felt that he had responded appropriately to the therapy he had received in custody. He continued to see a psychologist. He identified his earlier problems with non-compliance as being in relation to his father who encouraged him to avoid his supervisory responsibilities. He now has no contact with his father or mother.

64. His weekly routine involves going shopping at Westfield for two hours with a support worker. Then on the next day, he will go to a psychologist and then go with a support worker to the library. It seems then on Wednesday and Thursday, he goes to the markets and shopping again. He has no scheduled activities on Friday, Saturday and Sunday. As is apparent from that schedule, his life revolves around going to ordinary places such as shopping centres and receiving treatment.

65. Dr Lennings generally supports the conditions which were provided to him with the original summons. I should note that there has been some modification to those conditions, having regard to the new conditions attached to the amended summons.

66. Dr Lennings said in his report:

“The primary concern for Mr Brown is that his conditions force a degree of social isolation for him that can increase his stress level. The difficulty is that in meeting his needs for more social activity raises the likelihood of him reoffending. Finding the correct balance in that is going to be a matter of fine-tuning as his response to supervision unfolds over a period of time.”

69. Dr Lennings identifies the lack of social interaction and borderline loneliness as long-term stressors for the defendant.

70. Dr Lennings considers that the defendant is in a difficult position. He lacks the ability to internalise the external restraints that have been placed upon him that will minimise his risk. He considers that any change that will occur will happen slowly and hence a five-year period would be appropriate for the ESO.

71. However, he considers that the defendant can be maintained safely in the community provided that he has the appropriate support.

Other evidence

72. I have had regard to the case notes and Corrective Services’ records relating to the defendant’s supervision under the ISO. It is apparent that the defendant has had some difficulty complying with the terms of the ISO.

73. There is a risk assessment report from Holly Cieplucha, Senior Psychologist, Serious Offenders Assessment Unit, supported by Dr Richard Parker, Senior Psychologist within the same unit, to which I also have regard. There is little doubt that the defendant presents in the high-risk range.

74. There is a risk management report from a Shantelle Hodgkinson, a Community Corrections Officer in the Extended Supervision Order Team, endorsed by Kelli Grabham of the same team, which relates to the use of electronic monitoring.

75. The risk assessment and risk management reports cover the means by which the risks associated with the defendant’s release into the community will be supervised. There being no issue between the parties that the defendant should be subject to an ESO and even that he should be subject to electronic monitoring, it is not necessary that I comment further on these reports. The risks identified are essentially the types of risks already referred to by the expert psychiatrists.

Unacceptable risk: s 5B(d)

76. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. As such, the prerequisites for the making of an ESO set out in ss 5B(a)–(d) are satisfied. Whilst I have a discretion whether to actually make the ESO in all the circumstances, I am satisfied that it should be made.

77. I must have regard to the matters set out in s 9(3) in addition to any other matters that I consider relevant. As will be evident from the evidence on which I have already commented, I have had regard to the matters set out in s 9(3) in determining whether there should be an ESO.

78. I further have regard to that evidence in determining the conditions which should be imposed.

The conditions

79. The focus of the oral evidence and, indeed, the submissions from the parties was on the dispute as to some of the conditions. As will be apparent from the conditions, many of the risk factors identified in the evidence are the subject of conditions which are agreed. The conditions that I impose are annexed to this judgment. The proposed conditions that were disputed, which were limited in nature, were as follows:

Condition 8:

8. In addition to and without limiting any of the other conditions, the defendant must not go:

a. within 1km of to Sydney and/or Bankstown Airports;

b. to the Sydney Cove Passenger Terminal; or

c. within 5km of any state border of New South Wales;

except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, attending upon other government services in accordance with his approved schedule or as directed, or for any other reason with prior approval from his DSO.

Condition 10:

10. The defendant must be at his approved address between 10:00pm and 06:00am unless other arrangements are approved by a DSO.

Condition 32:

32. If the defendant starts a romantic relationship with a woman or has a sexual relationship with a woman, he has to tell his DSO within 24 hours the name of that woman (“the woman”) and truthfully answer any questions that the DSO asks regarding that relationship.

Condition 33:

33. If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. If the defendant starts any other kind of intimate relationship with someone (including a personal friendship), he has to tell his DSO who may want to tell the person about his criminal history if the disclosure is reasonably necessary.

Condition 34:

34. The defendant must agree to a DSO disclosing his criminal history to another person including but not limited to persons referred to in conditions 32 and 33 if the disclosure is reasonably necessary.

Condition 44:

44. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet- based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.

Condition 50:

50. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence without the prior approval of a DSO.

80. The defendant originally disputed condition 8 but ultimately agreed there was no practical utility to that dispute. The conditions impose an obligation on the defendant to live at an address approved by a DSO and notify a DSO of an intention to change the defendant’s address. He must provide a schedule of movements. He is not permitted to leave the state.

81. I cannot think of any reason why he would need to go to an airport or passenger terminal at this stage or go close to any state border. Be that as it may, if he needs to, he is able to seek the prior approval of his DSO. Condition 8 will be included as part of the conditions.

82. Condition 10 is a form of curfew. It requires the defendant to remain in his approved address between 10.00pm and 6.00am each day unless other arrangements are approved by a DSO. Whilst the index offence was committed late at night, there is no pattern of offending late at night or in the early hours of the morning. There is nothing about his cognitive impairment or disorders which would tend to suggest that he is more likely to reoffend at night rather than during the day.

83. Dr Furst said in cross-examination that the imposing of a curfew would have limited effect in managing the risk. He did not perceive it as adding to the value of the ESO. He thought curfews were more applicable to juveniles on bail, rather than cases of this kind.

84. He agreed that there has to be a balance between managing the risk and allowing the defendant to gain social connections. He must have the ability to communicate with people within a peer group, although Dr Furst emphasised that he did not consider that the defendant is capable of having “free leave in the community at all”.

85. Dr Lennings shared those views, although Dr Lennings was less convinced that a curfew was not necessary, suggesting that the lifting of a curfew might be something that would be manageable over time. He considers that a curfew is one way of managing the community safety in the situation where the defendant becomes distressed or frustrated or just does something silly.

86. I accept the defendant’s submission that he has made some progress since the commission of the last offences. The risk management report of 27 October 2020 suggests that the defendant appeared motivated to undertake interventions through addressing his offending behaviour. He receives support in the community through the NDIS package and has secured independent accommodation.

87. I am mindful of the observations of Fullerton J in the State of New South Wales v Bugmy,[5] as follows:

“The Court is entitled to expect that that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways.”

5. [2017] NSWSC 855 at [89].

88. I am not satisfied that the defendant is more likely to reoffend in the middle of the night than at some other time during the day. The State has not established that there is any particular or additional risk which must be reduced by a curfew. I prefer the views of Dr Furst on the issue. I do not think this condition is necessary in all the circumstances.

Conditions 32 to 34

89. The State seeks to impose an obligation on the defendant to inform the DSO if and when he commences a romantic relationship with a woman or even if he commences a personal friendship, so that the DSO might tell the person about the defendant’s criminal history if the DSO considers it reasonably necessary.

90. Dr Furst expressed concerns in relation to the defendant using Facebook or similar platforms to communicate with women who are otherwise not known to him. He referred to the risk of grooming-type offences. He also considered that there was a need for those supervising the defendant to have the capacity to communicate matters directly relating to his criminal history with persons with whom he forms a friendship. He formed this view on the basis that there is risk of the defendant befriending and/or exploiting vulnerable people.

91. However, on cross-examination he accepted that there was no need for an absolute prohibition on the defendant using social media platforms to communicate with people. He also agreed that a too onerous restriction in respect of the defendant meeting people and forming friendships would make it very difficult for him to make friends. As I have already observed, there is a need for balancing these types of restrictive conditions with ensuring that the conditions are not so onerous so as to have the contrary or an undesirable effect.

92. The defendant agreed to the imposition of condition 32. Having regard to the defendant’s history of prior offending, it will be important that the defendant inform his DSO when he becomes involved in a romantic relationship with a woman so that the DSO can make an assessment of the risks involved.

93. I hasten to add that condition 32 is not intended to preclude the defendant entering into a consensual relation with a woman. These conditions are not intended to preclude the defendant from having normal and regular social contact with other persons. I thus accept the defendant’s submission in respect of condition 33. On one view, condition 33 is so broad that it requires the defendant to inform his DSO of anyone to whom he might speak on more than one occasion.

94. A condition which requires him to determine when the relationship might be intimate or could be considered a personal relationship and then assess whether he needs to tell his DSO is a condition that is so onerous that it almost sets up the defendant to fail. The defendant is subject to a condition imposing an obligation on him to prepare a schedule of movements. He is already subject to electronic monitoring. He is also required to inform his DSO of when he might be in a romantic relationship with a woman and the DSO then has a discretion whether to inform the woman of the defendant’s criminal history. It does not seem to me that the broader obligation extending the reporting obligation even to friends he might make is necessary.

95. Proposed conditions 33 and 34 should be removed.

96. Condition 32 should be amended so as to add the following:

“The DSO may disclose the defendant’s criminal history to the woman if the DSO considers that the disclosure is necessary for the purposes of reducing any risk to the woman.”

Conditions 44 and 50

97. These conditions relate to the defendant’s use of social networking and dating sites and then access to pornography. Of course, they are different things but it is convenient to deal with them together.

98. In my view, proposed condition 44 is too broad. I understand that it is a reflection of the defendant’s breach of a condition of the ISO when he sought access to a site, “Be Naughty”, but it remains unnecessarily broad. Further, it is not clear to me why there would need to be a restriction to using multiplayer video games or email altogether. The condition is made too broad by the use of the words after “including, but not limited to…”.

99. Again, there were somewhat mixed opinions from the experts on this condition. Dr Furst expressed it best during cross-examination when he agreed that he would not advocate a total prohibition. He would advocate access to platforms as directed by his supervising officer. Similarly, he would allow the use of the internet as a means of communicating or accessing friendships generally.

100. The following condition should be substituted for proposed condition 44:

“Should the defendant wish to access or connect to or join any internet-based social networking services the defendant must first notify the DSO of the name of the service and seek the approval of the DSO. The DSO should not unreasonably withhold approval in respect of any mainstream networking service.”

101. Condition 50 was subject to considerable debate. The State has proposed an amendment to include “without the prior approval of a DSO” rather than a blanket prohibition on the defendant accessing pornography. The defendant proposes a solution that he simply obtain pre-approval from the DSO to generally access certain pornographic sites.

102. The concern of the experts is that there are sites and search terms which should be prohibited. As Dr Furst says, the Police would be aware of terms which would be more paedophilic-related or rape-related. Dr Furst thought that the search terms could be defined or the web searches defined in a narrow area. He thought that might alleviate the problem of potential frustration and isolation and having no sexual outlet. On the other hand, he thought that allowing the defendant to spend hours a day might lead to the defendant developing an obsessional preoccupation.

103. Dr Lennings was concerned that allowing the defendant access to pornography could be a triggering factor and might increase his deviant sexual thoughts. He did not agree that denying access to pornography increased the risk.

104. Whilst I have regard to Dr Lennings’s opinion, it seems to me that the views of Dr Furst achieve a more balanced approach. That is, I decline to impose an absolute prohibition. Apart from anything else, it seems to me to be unworkable, unless there is a condition prohibiting the defendant from using the internet at all (which is not suggested).

105. Whilst the defendant suffers from cognitive impairment, he is quite capable of understanding that there are certain sites which he must not access. He is also quite capable of seeking pre-approval from his DSO to access sites which have not been legally restricted.

106. In my view, the answer is to do as the defendant suggests which is to allow him to seek pre-approval from his DSO. The current condition might be interpreted as imposing an obligation on the defendant to contact his DSO every time he wishes to access a site. That is too onerous a condition. Condition 50 should read:

“Unless he has obtained prior approval from his DSO to generally access a particular site (i.e. at any time of his choosing), the defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO.”

Term of the order

107. There is an issue as to whether the term should be three or five years. The defendant submits that a term of three years would allow for the possibility that there may be some improvement and further consideration at the end of the three-year period. Certainly, the defendant is transitioning out of custody and there is some uncertainty as to how that might develop and whether he will be able to maintain compliance with the conditions.

108. Whilst both experts suggest that there is unlikely to be any change in the risk over the next three years, there is evidence of improved motivation on the part of the plaintiff and he has some support in the community through his NDIS package.

109. I am conscious of the need not to impose overly onerous conditions (see [87] above). The conditions include electronic monitoring. It seems to me that the conditions are strict. The State will be able to review his compliance and improvement (or lack thereof) after three years. The conditions should be imposed for three years.

Orders

110. Accordingly, I order that:

1. pursuant to ss 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be under supervision in the community for a period of 3 years commencing today, 26 February 2021;

2. pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), during the period of supervision the defendant is to comply with the conditions in the Annexure to this judgment.

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ANNEXURE

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services.

“Defendant” means Bruce Leslie Brown, also known as Bruce Brown, the defendant in these proceedings and the subject of the order.

“Digital Blueprint” has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

“Electronic Identity” means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Material” includes:

(1) any written or printed material;

(2) any picture, painting or drawing;

(3) any carving, sculpture, statue or figure;

(4) any photograph, film, video recording or other object or thing from which an image may be reproduced;

(5) any computer data or the computer record or system containing the data; and

(6) any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Search” includes:

1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

2. A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

Schedule of Movements

5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

8. In addition to and without limiting any of the other conditions, the defendant must not go:

a. within 1km of to Sydney and/or Bankstown Airports;

b. to the Sydney Cove Passenger Terminal; or

c. within 5km of any state border of New South Wales;

except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, attending upon other government services in accordance with his approved schedule or as directed, or for any other reason with prior approval from his DSO.

Part B: Accommodation

9. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

10. Deleted

11. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

12. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

13. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

14. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. The DSO may give approval for a person to stay overnight for one or more nights.

Part C: Place and travel restrictions

15. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

16. The defendant must not leave or attempt to leave New South Wales except with the approval of the DSO.

17. The defendant must not frequent or visit any place or district specified by a DSO.

18. Without limiting condition 17 above, the defendant must not go to any of the following without the prior approval of a DSO:

a. Day-care centres, pre-schools and schools;

b. Camping grounds and caravan parks;

c. Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

d. Pools;

e. Residences where the defendant knows that persons aged under 18 years ordinarily reside; and

f. Internet cafes or other businesses which provide devices for public access to the internet either for payment or for no charge (other than employment agencies).

19. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education

20. The defendant must take all reasonable steps to participate in interventions as reasonably recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

21. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.

22. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.

Part E: Drugs and alcohol

23. The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained.

24. The defendant must not possess or consume alcohol without prior approval of a DSO.

25. The defendant must submit to drug and alcohol testing.

26. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.

27. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association

Association with Children

28. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than Incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

Associations with Others (not children)

29. The defendant must not associate with any person or persons specified by a DSO.

30. Without limiting condition 29, the defendant must not:

a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.

b. associate with any people who he knows are consuming or under the influence of illegal drugs.

c. associate with any person held in custody without prior approval of a DSO.

31. The defendant must not engage the services of sex workers, without the prior approval of a DSO.

32. If the defendant starts a romantic relationship with a woman or has a sexual relationship with a woman, he has to tell his DSO within 24 hours the name of that woman (“the woman”) and truthfully answer any questions that the DSO asks regarding that relationship. The DSO may disclose the defendant’s criminal history to the woman if the DSO considers that the disclosure is necessary for the purposes of reducing any risk to the woman.

33. Deleted.

34. Deleted.

35. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation.

Part G: Weapons

36. The defendant must not possess or use any of the following, without a DSO’s prior approval:

a. a knife (other than one designed for use in connection with food preparation or consumption), machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

b. any other implement made or adapted for use for causing injury to a person; or

c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

Part H: Access to the internet and other electronic communication

37. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).

38. The defendant must not use any alias, electronic identity, log-in name, name other than “Bruce Brown” (unless otherwise approved by his DSO) or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

39. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

40. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

41. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

42. The defendant must not use any coded or encrypted messaging application or service.

43. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

44. Should the defendant wish to access or connect to or join any internet-based social networking services the defendant must first notify the DSO of the name of the service and seek the approval of the DSO. The DSO should not unreasonably withhold approval in respect of any mainstream networking service.

45. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

46. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

47. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part I: Search and seizure

48. If the DSO reasonably suspects that a search of the defendant’s person or residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then submit to that search or those searches that may be carried out by a DSO or on behalf of a DSO.

49. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.

Part J: Access to pornographic, violent and classified material

50. Unless he has obtained prior approval from his DSO to generally access a particular site (i.e. at any time of his choosing), the defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO.

Part K: Personal details and appearance

51. The defendant must not change his name from “Bruce Brown” or use any other name without notifying a DSO.

52. The defendant must not significantly change his appearance without the approval of a DSO.

53. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

54. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part L: Medical intervention and treatment

55. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

56. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

57. The defendant must take all anti- libidinal medications or medications which address his mental state that are prescribed to him by his healthcare practitioners and then only in the manner prescribed.

58. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

59. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

60. The defendant must agree to any information which is relevant to his risk and/or supervision and compliance with these conditions being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

61. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Endnotes

Decision last updated: 26 February 2021